After Harvard, Yale Law Second To Ban Military Recruiters

Yale Law School announced last week that it would not make its recruiting resources available to Pentagon officials until the military pledges to end discrimination against gay and lesbian servicemembers.

Dean Harold H. Koh ’75 told the military on Tuesday—just two days before military officials were slated to interview prospective applicants for Pentagon legal posts—that Yale Law School would no longer grant the armed forces an exemption from the school’s nondiscrimination policy.

Koh’s move made Yale the second Ivy League law school—after Harvard—to restrict military recruitment in protest of the “don’t ask, don’t tell” policy.

Under a 1996 federal statute known as the Solomon Amendment, schools stand to lose hundreds of millions of dollars in government funds unless they facilitate military recruitment on campus.

But in a suit filed by the majority of the Yale Law School faculty, U. S. District Court Judge Janet C. Hall ruled last Monday that the Solomon Amendment is unconstitutional. A Third Circuit panel in Philadelphia issued a similar ruling late last year.

“Both find that the statute violates the [law schools’] right of freedom of association and also amounts to compelled speech that violates the First Amendment,” said David N. Rosen ’65, a New Haven-based attorney who represented the Yale professors.

The suit in the Third Circuit was brought by the Forum for Academic and Institutional Rights (FAIR), a coalition of law schools, as well as several individual plaintiffs. Harvard did not join FAIR, although a majority of the Harvard Law faculty did file a friend-of-the-court brief on FAIR’s behalf last January.

At Yale, gay rights advocates had been preparing to protest the military’s presence on campus last week, said Rebecca S. Tinio ’00, a second-year Yale law student and a board member of the Student/Faculty Alliance for Military Equality (SAME). But on Thursday, with the Pentagon conspicuously absent from the group of employers conducting interviews with students, the atmosphere on campus was “joyful,” Tinio said.

But elsewhere in recent weeks, opponents of the Solomon Amendment suffered a pair of setbacks.

First, on January 20, Judge Thomas L. Ambro of the Third Circuit, responding to a request from government lawyers, ruled that the court’s decision to strike down the Solomon Amendment would not go into effect “until further order.” The government now has until the end of this month to ask the Supreme Court to review the case, according to Sharon E. Frase, an attorney who is representing FAIR in the Third Circuit case.

Frase protested Ambro’s move to stay the decision even before he had received FAIR’s attorneys’ response to the government lawyers’ motion.

“Judge Ambro had no doubt in his mind that this case was going to get Supreme Court review,” said Howard J. Bashman, an attorney representing veterans’ groups that filed a friend-of-the-court brief on behalf of the Pentagon.

Ambro “didn’t think it was even necessary to hear the opposition,” Bashman said.

With Ambro’s decision to stay the Third Circuit’s ruling, Harvard could at least theoretically face repercussions from the federal government for barring military recruiters from campus.

“It does not look like Harvard is yet a direct beneficiary of any ruling that invalidates the Solomon Amendment,” Bashman said.

Rosen, the New Haven-based attorney, said that Monday’s ruling “applies—strictly speaking—only to Yale, because Yale is the only institution directly involved in the case. There is certainly no injunction for any institution other than Yale at the moment.”

In a second setback for opponents of the Solomon Amendment, the House of Representatives passed a resolution by a 327-84 margin Wednesday reaffirming its support for the 1996 statute and calling on the Bush administration to appeal the Third Circuit panel’s ruling.

The sponsor of the resolution, Rep. Mike Rogers, R-Ala., told The Crimson that the vote demonstrated the “strong bipartisan support” behind the Solomon Amendment.

But the resolution is non-binding, and the Bush administration had already said it would file an appeal.

Bashman said the House resolution was most likely designed to garner press coverage and send a message “to the folks back home,” rather than to influence an already-sympathetic Bush administration.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.